So Whose Castle Is It Anyway?

We have all heard the old adage that “a man’s home is his castle.” But whose castle is it in the context of community living and condominium ownership?

The competing interests of individual privacy collide with the association’s interest in security on an almost daily basis. Where do those interests compete and where do they intersect?

The individual’s right to privacy is time-honored and engraved in principles that the United States Supreme Court has articulated in many cases and is codified in the Illinois Constitution.

Section 6 of the Illinois Constitution guarantees the right to privacy. “’The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.”

Two Illinois statutes have particular import in the context of condominium living and governance. The Illinois Eavesdropping Act 720 ILCS 5/14-1 et seq. prohibits the recording of “private conversations.” The statute defines private conversations as “oral conversations transmitted under circumstances reasonably justifying the expectation that the conversation would remain private” and further prohibits surreptitious recording of conversations without all parties to the conversation consenting to the recording.

The legislature has also enacted the Video Recording Act 720 ILCS 5/26-4. The law protects the intrusion by video recording where an individual has a reasonable expectation of privacy, without that person’s consent.

What if the association has an issue with criminal activity on the premises? Do those circumstances permit the association to act to protect members by videotaping activity?

Despite the existence of various statutes, the prohibition against intruding on an individual’s expectation of privacy does not extend to the common areas of the association where an expectation of privacy simply does not exist.

By its very definition all owners have an interest in the common areas of the association like parking lots, hallways, laundry areas, pools, and similar areas which do not intrude on the individual unit owner’s areas of seclusion such as his own unit.

The association has the right to record by video common areas of the property. It does not have the right to record by video any part of an individual owner’s unit or record audio conversations or audio transmissions even in the common areas without all parties’ consent.

The association has the obligation to protect all of unit owners and provide a safe and secure environment for those owners.

The association’s obligation does not trump the individual’s right to be secure and free from intrusion within their own units, the association clearly has the right and the obligation to secure the common areas of the property, which may include video recording.

It is very clear that although a man’s home is his castle, his castle does not extend beyond the walls of his unit.

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